CopyCited 53 times | Published | Supreme Court of Georgia | Nov 5, 2012 | 734 S.E.2d 55, 2012 Fulton County D. Rep. 3431
THOMPSON, Presiding Justice.
We granted certiorari in this appeal to consider whether OCGA §
34-9-207 requires an employee who files a claim under the Georgia Workers’ Compensation Act, OCGA §
34-9-1 et seq....
...o meet without McRae or her counsel present.
Arby’s then filed a motion to dismiss McRae’s hearing request or in the alternative to request an order authorizing the treating *244physician to communicate with an Arby’s representative. See OCGA §
34-9-207 (a) (authorizing board to withhold benefits or remove hearing from calendar during time that employee unjustifiably refuses to sign required medical release)....
...elease, her hearing request was removed from the hearing calendar. The appellate division of the State Board of Workers’ Compensation and the superior court upheld the board’s order. A majority of the Court of Appeals reversed, holding that OCGA §
34-9-207 (a) provides no support for the claim that an employer is entitled to engage in ex parte communications with a treating physician.
1....
...Under Georgia law, an employer in a workers’ compensation case is entitled to seek from any physician who has examined, treated, or tested the employee “all information and records related to the examination, treatment, testing, or consultation concerning the employee.” OCGA §
34-9-207 (a)....
...ists or psychologists. This waiver shall apply to the employee’s medical history with respect to any condition or complaint reasonably related to the condition for which such employee claims compensation.
Id. Under the unambiguous language of OCGA §
34-9-207 (a), any privilege the employee may have had in protected medical records and information related to a workers’ compensation claim is waived once the employee submits a claim for workers’ compensation benefits or is receiving weekly income benefits or the employer has paid any medical expenses. The occurrence of any one of these triggering events waives the employee’s privilege in confidential health information and the information may be released by a treating physician.
Although OCGA §
34-9-207 (a) specifies the category of information for which the privilege is waived, it is silent with regard to the methods by which the requested information may be provided. The Court of Appeals construed OCGA §
34-9-207 (a) to preclude informal ex parte communications between McRae’s treating physician and *245her employer because, it concluded, the requirement to disclose “all information and records” could not reasonably be interpreted as requiring the disclosure of anything other than tangible documentation. McRae, supra,
313 Ga. App. at 316. The Court of Appeals’ failure to distinguish between the terms “records” and “information,” however, is not supported by the language of OCGA §
34-9-207 (a) or application of generally accepted rules of statutory interpretation.
As recognized by the dissenting judges in McRae, when considering the meaning of a statute courts must “afford the words of the statute their ‘ordinary signi...
...Further, when interpreting a statute courts must give meaning and intent to all words, bearing in mind that “[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Six Flags Over Ga. II v. Kull,
276 Ga. 210, 211 (576 SE2d 880) (2003). OCGA §
34-9-207 (a) by its plain language requires a treating physician to disclose not just tangible documents, but also “information related to the examination, treatment, testing, or consultation concerning the employee.” Giving the term “inform...
...ary 1160 (1976) (“information” is “knowledge communicated by others or obtained from investigation, study, or instruction” or “knowledge of a particular event or situation”). We conclude, therefore, that “information” as used in OCGA §
34-9-207 (a) includes oral communications and the Court of Appeals erred by interpreting OCGA §
34-9-207 (a) to prohibit oral communications between a treating physician and an employer.
Despite the policy arguments set forth by McRae and amici curiae in this appeal, we discern no legal grounds for prohibiting ex parte oral communication between a treating physician and an employer to the extent confidentiality is waived by an employee in a workers’ compensation case. OCGA §
34-9-207 (a) does not expressly prohibit ex parte communications, and the Health Insurance Portability and Accountability Act’s (HIPAA) privacy provisions do not preempt Georgia law on the subject of ex parte communications because HIPAA exempts...
...Baker was a medical malpractice case, and thus the disclosure in Baker was subject to HIPAA’s requirements for disclosure. Id. at 336-337. Moreover, although we acknowledged in that case that “the substantive right to medical privacy under Georgia law endures,” an employee waives this right under OCGA §
34-9-207 (a) with respect to a compensable injury once a claim for workers’ compensation benefits has been submitted, weekly income benefits have been received, or any medical expenses have been paid by the employer. Id. at 338. Therefore, we hold an employer may seek relevant protected health information informally by communicating orally with an employee’s treating physician.
2. While neither OCGA §
34-9-207 (a), HIPAA, nor Georgia substantive law precludes ex parte communications between a treating physician and an employer in a workers’ compensation case as long as such communication is appropriately related to the compensable injury, we...
...tion for which a privilege has not been waived. See OCGA §
34-9-58 (board “shall exercise all powers and perform all the duties relating to the enforcement of [the Act]”).
Finally, we note that while treating physicians are required under OCGA §
34-9-207 (a) to provide the relevant information “within a reasonable time and for a reasonable charge,” the statute does not demand that they agree to be interviewed ex parte....
...Under our statutory scheme, physicians may agree to be interviewed only on the condition that their own counsel, or the employee or her counsel, is present, may request that the interview be audio or video recorded, and may share the substance of the interview with the employee and her counsel.
3. Because OCGA §
34-9-207 (a) does not prohibit ex parte communications between McRae’s treating physician and defense counsel regarding health information for which any privilege has been waived, we conclude the board acted within its discretion by ordering McR...
